Allowed

Mansurbhai Dehabhai Harijan-Dec. v. State of Gujarat

Gujarat HC18 Jun 2014SCA/9766/2013

Case brief

AI extract

What is this about?

This Single Judge Court held that exercising statutory revision powers under the Bombay Land Revenue Code after a 22-year lapse was unreasonable. The petition challenging a revision order restoring the Respondent's rights was allowed.

What did the court decide?

The impugned order passed in the revision by the authorities is quashed and set aside. The land will not vest with the Government.

Mansurbhai Dehabhai Harijan-Dec. Vs State of Gujarat — Land Acquisition | Gujarat HC (2014)

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C/SCA/9766/2013 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 9766 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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MANSURBHAI DEHABHAI HARIJAN-DEC. & 1....Petitioner(s)

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Versus

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STATE OF GUJARAT & 5....Respondent(s)

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Appearance:

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MR. D.P.KINARIWALA, ADVOCATE with MR NIKUNJ D BALAR, ADVOCATE for the Petitioner(s) No. 1 - 1.4 , 2

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MR. UDIT MEHTA, AGP for the Respondent(s) No. 1

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RULE SERVED for the Respondent(s) No. 1 - 6

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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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Date : 18/06/2014

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Page 1 of 6

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C/SCA/9766/2013 JUDGMENT

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ORAL JUDGMENT

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The present Petition is filed by the Petitioner under Articles 14, 19(1)(g) and 226 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code for the prayer inter alia the impugned order passed by the Respondent No.2 – Additional Secretary, Revenue Department (Appeal) in Revision Application No.94 of 2009 may be quashed and set aside on the grounds stated in the application.

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Heard learned Counsel Shri D.P.Kinariwala appearing with learned Advocate Shri Nikunj D. Balar for the Petitioners and learned AGP Shri Udit Mehta for the Respondents.

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Learned Counsel Shri D.P.Kinariwala has referred to the papers as well as the impugned order at Annexure-A and submitted that the transaction regarding the land in question which took place in the year 1985 by a sale deed dated 30.1.1985 and the entry was made is sought to be reopened after a period of more than 22 years. He pointedly referred to the notice dated 22.1.2008 regarding the breach of condition produced at Annexure-E. He has also referred to the another notice at Annexure-F. Learned Counsel Shri Kinariwala submitted that as observed by the Collector in the order at Annexure-G that the notice in purported exercise of power under Section 211 of the Code are given belatedly and therefore as per the provisions of Section 203 of the Code the appeal could be filed within 60 days. He therefore submitted that in spite of this the revisional

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Page 2 of 6

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C/SCA/9766/2013 JUDGMENT

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powers are sought to be exercised which is challenged in the present proceedings. He also referred to the entry in Village Form 6 at Annexure-D and submitted that it has been recorded that only on payment of premium the entry could be made. He therefore submitted that the purported exercise of power under the Code at belated stage is not justified and therefore the present petition may be allowed.

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Learned AGP Shri Udit Mehta referred to the papers and made a feeble attempt to submit that since there is a breach of condition the powers are exercised.

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In view of this rival submissions it is required to be considered whether the present petition can be entertained and whether the impugned order would be sustained.

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As it transpires from the facts of the case the transaction has taken place and the sale deed has been executed in the year 1985 and the exercise of statutory power under the Land Revenue Code for the alleged breach of condition after such a lapse of period of 22 years could be justified. It is required to be mentioned that such provision of law particularly the land laws restrict and regulate transfer of a land in a particular manner and also prohibit such transfer without permission which will have to be considered for the purpose of exercise of statutory powers. When such laws provide for some kind of regulation and restriction making it obligatory to have a permission in compliance with the conditions which have been

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Page 3 of 6

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C/SCA/9766/2013 JUDGMENT

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violated, then what could be the consequences. It is well accepted that such statutory powers have to be exercised within a reasonable period and when such powers are exercised beyond a reasonable period whether such orders in exercise of powers could be sustained or not. The Hon'ble Apex Court has considered this aspect and even if the statute does not provide for a period of limitation for exercise of power the concept of reasonable period has been evolved. The Hon'ble Apex Court in a judgment reported in 2009 AIR SCW 6305Santoshkumar Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale and ors. in similar circumstances referring to Maharashtra Land Revenue Code has made the observations. The observations which have been made in this judgment has a reference to the earlier judgment including the judgment of this Court in case of State of Gujarat v. Patel Raghav Natha – 1969 (2) SCC 187 which has been accepted throughout. The Hon'ble Division Bench of this Court in case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & Ors. reported in 2013(2) GLR 1788 has considered this very aspect while considering the provisions of Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948. What could be considered as a reasonable time has been discussed and it has been observed referring to the judgment of the Hon'ble Apex Court reported in (2003) 4 SCC 488 . It has been observed:

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Page 4 of 6

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C/SCA/9766/2013 JUDGMENT

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“ That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer (Advanced Law Lexicon by P.Ramanatha Aiyer, 3^rd Edn., 2005)”

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Again the Hon'ble Apex Court in a judgment reported in (2005)

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7 SCC 667 -Joseph Severance v. Benny Mathew,

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has considered the word ‘reasonable time’.

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Therefore, having regard to the aforesaid observations and broad guidelines with regard to the manner in which the statutory power could be exercised within a reasonable period, the present petition deserves to be allowed. The exercise of power would not be justified in the present case after a lapse of about 22 years. Therefore the present petition deserves to be allowed and accordingly stands allowed. The impugned order passed by the authorities including the order passed in the revision are hereby quashed and set aside. However, it is clarified that the benefit which would accrue in favour of the present petitioners is that the land in question would not vest with the Government and the nature and tenure or the character of the land will remain as it is and will be subject to the other remedy which may be available to the petitioner. Rule is made absolute. Direct service permitted.

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(RAJESH H.SHUKLA, J.)

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Page 5 of 6

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C/SCA/9766/2013 JUDGMENT

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JNW

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Mansurbhai Dehabhai Harijan-Dec. v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Mansurbhai Dehabhai Harijan-Dec. v. State of Gujarat

Case brief

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